The legal frontier of quantum technology

Quantum technologies are poised to transform society.

In the coming years, quantum developments could produce sensors capable of detecting disease at the very earliest stages; networks that offer provably secure financial and medical record transfers; and eventually computers that could, in just minutes, perform analyses that would take today’s supercomputers millions of years. 

But the legal and regulatory systems surrounding these innovations are still taking shape, raising questions about whether existing laws can address concerns around intellectual property, antitrust, liability, privacy and more. At the same time, policymakers must weigh how to protect U.S. interests without stifling the international collaboration that’s vital to the field’s progress. Researchers who rely on foreign equipment, international talent and cross-border collaborations already face obstacles that some worry could impede progress. 

These were among the issues discussed at a panel organized by the Chicago Quantum Exchange (CQE) last month at the University of Chicago Law School. 

The event, which focused most heavily on how the law should balance global collaboration and the protection of U.S. interests, brought three leading UChicago faculty together: David Awschalom, the Liew Family Professor of Molecular Engineering and Physics at UChicago’s Pritzker School of Molecular Engineering, senior scientist at Argonne National Laboratory, and director of the CQE; Aziz Huq, the Frank and Bernice J. Greenberg Professor of Law; and Lior Strahilevitz, the Sidley Austin Professor of Law.

The discussion was moderated by Robert W. Karr Jr., a partner at Barnes & Thornburg LLP who co-chairs the firm’s Quantum Technology Industry Group.

The panel marked the start of a broader effort to explore how legal and regulatory frameworks can support U.S. quantum research, commercialization and workforce development. The work will include contributions by industry experts, legal scholars, scientists and others. 

“Quantum technology is in a critical place right now as applications approach commercial viability,” Awschalom said after the event. “The field’s enormous technological and economic potential is within view, and the science is advancing more rapidly than expected. Now is the time for conversations about how we can balance protection and collaboration in a way that encourages, not stifles, innovation.” 

Existing U.S. regulations aimed at quantum technologies often focus on interactions with the rest of world—how we share and review ideas, educate and hire talent, fund joint projects and exchange goods. The U.S. has entered into bilateral agreements with nearly a dozen countries and has coordinated export controls with those and others. 

But even the 2018 National Quantum Initiative Act, which focused on accelerating quantum research and development and is up for reauthorization, only laid the groundwork for a comprehensive regulatory regime. 

Some regulations have been implemented, including export controls on quantum technologies and encryption standards aimed at protecting government agencies and contractors from future quantum-enabled attacks. But such restrictions can also slow progress, limiting how researchers hire, collaborate and even equip their labs.

“In the field of quantum technology, much of the instrumentation used in our laboratories comes from outside the United States,” Awschalom told the audience. “From cryogenics to photonics, we’re heavily dependent on international trade in this field.” 

Protecting national security

Protectionist measures are tied to serious national security concerns. 

Quantum computers, once sufficiently advanced, will be able to break certain key encryptions currently used by institutions and governments all over the world. Quantum communication aims to transmit information in a way that is completely unhackable, where the information being sent cannot be accessed except by the intended recipient. Quantum sensors have applications spanning navigation to medicine including uses in defense.

The “dual-use” nature of quantum technologies means it is necessary for the U.S. to keep its assets secure. 

In September 2024, the U.S. Commerce Department imposed export controls on certain emerging technologies, including quantum computing. Quantum computers are now considered “critical technologies,” which means sales and transfers involving their components, materials, or software now require filing for a license with the Committee on Foreign Investment in the United States.

But because international cooperation is so central to the field’s advancement, panelists said a more nuanced approach may be needed. Cross-border collaborations touch many aspects of innovation, including the exchange of ideas, technology and students.

“International partnerships help us enormously,” Awschalom said, citing current and future agreements with Japan, France and Switzerland as examples. 

Huq also spoke to the importance of global connections. He referred to the work of political scientist Jeffrey Ding, who argued that simply developing groundbreaking technology isn’t enough to ensure economic advantage. Instead, solid infrastructure and shared norms are what enable a nation to reap economic success. 

“In the absence of [infrastructure and shared norms] it is very unlikely that innovation alone is going to generate economic prosperity or productivity,” Huq said. “If you think Ding’s analysis is right … then one of the problems with export controls is that [they are] focused upon the wrong locus with respect to the conditions under which technology will diffuse and be adopted in ways that generate new kinds of productivity. The principal thing that [the export controls are] focused on is restricting the flow of ideas, capital and goods across borders.”

A more complicated issue is “deemed exports,” or the sharing of technology or data with a foreign national within the U.S. This can be as general as a researcher verbally discussing non-public research data with an international employee, which is then deemed to be an export to that employee's country—even if the conversation takes place at a lab in Chicago. 

Huq was unsure how the recent export control orders would affect deemed exports in the field of quantum technology.

“It's not clear to me, looking at these export controls on their face and looking at the technologies, what the importance is of First Amendment protections in this field,” Huq said. “And I would flag that one example of the application of First Amendment rules might be the question of whether certain kinds of academic conversations can occur within labs, say, between a U.S. citizen and a green card holder who is also a national of a country that is deemed to be of concern by the government—the most obvious example is China.” 

“It's not clear to me that those conversations which might be swept under the deemed export element of the September regulations are free of constitutional protection.”

Timing matters

Regulating too early can also stifle innovation, said Strahilevitz, contrasting the legal approach of the European Union with that of the United States. 

“Congress is very slow relative to our friends in Brussels,” he said. “It tends to wait until a technology is mature before it starts thinking about regulating. Early regulation can have real costs for innovation in Europe, but there are upsides from the perspective of protecting individual privacy and dignitary interests. The personalization of information processing, law enforcement uses, even things like managing critical infrastructure through traffic control or energy grids are all [quantum computing] applications where enough personal data comes into play that European law winds up being a real impediment to some of this development, potentially giving a comparative advantage to the United States. But it also increases threat levels in the United States, because there’s more of a wild, wild West factor here.”

The panel discussion drew attendees from across the UChicago campus, including from the sciences, law and business areas, as well as from quantum technology companies.

"What the Chicago Quantum Exchange is trying to do is engage the legal profession, academia, and others who can help understand where we are today and how the law can work in tandem to protect what is being built — and possibly even accelerate it," Karr said. “When we're looking at cutting-edge technologies that could change the way we act, behave, learn, and grow, regulations can impact that both positively and negatively.”